MANTRAC GHANA LIMITED vs. BATIMAT LIMITED [2013]DLCA2951

Date	2013-11-14
Suit No.	CIVIL APPEAL NO. H1/95/2013
Citation No.	[2013]DLCA2951

MARFUL-SAU JA(PRESIDING)

OFOE J.A.

TORKORNOO J.A.

MR. CHARLES ZWENNES FOR DEFENDANT/APPELLANT

MR. POKU AMPONSAH FOR PLAINTIFF/RESPONDENT

[2013]DLCA2951
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													<main id="main" class="content" style="min-height: 60rem" >&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; MANTRAC GHANA LIMITED<o:p></o:p>vs.<o:p></o:p>BATIMAT LIMITED<o:p></o:p>&nbsp;[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO. H1/95/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 14TH
NOVEMBER, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>MR. CHARLES ZWENNES FOR
DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. POKU
AMPONSAH FOR PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGEMENT<o:p></o:p>

</div>OFOE,J.A.:<o:p></o:p>We need to remind ourselves
that an appeal, as is common legal knowledge is by way of rehearing and this
casts a duty on an appellate court to review the whole evidence on record
whether the trial court has in anyway faltered as to give cause to upholding
the appeal lodged by the appellant. The powers of the appellate court in
reviewing the whole evidence and when these powers would be exercised in
interfering with the trial court’s findings have been expounded in several
authorities. Few of these cases are Gregory
vrs Tanoh IV &amp; Hanson (2010)SCGLR971 at 985&nbsp;
Obeng vrs. Assemblies of God Church (2010) SCGLR300, Achoro vrs Akanfela
(1996-97) SCGLR209, Akufo Addo vrs Catherine(1992)1GLR377 and Koglex(No 2) vrs
Field(2000)SCGLR175. Taking note of holdings in these authorities we
proceed to examine the appeal before us.<o:p></o:p>Plaintiff/respondent was in
the High Court seeking to recover possession of its commercial premises from
the defendant/appellant. We will in this judgment maintain their description as
plaintiff and defendant as they were in the trial court. As it transpired in
the trial court the parties were not in agreement as to the terms that governed
their tenancy. Whiles the plaintiff relied on a written agreement executed by
both parties, tendered as exhibit A, and maintained that that was the only
agreement between them the defendant relied on an oral agreement contending
that the written agreement, exhibit A, which its Managing Director executed was
procured by undue influence of the Managing Director of the plaintiff company
and therefore unenforceable. Both presented their respective cases before the
trial High Court judge who, after examining the evidence before her, gave
judgment rejecting the allegation of undue influence, accepted exhibit A as the
only agreement between the parties and ordered the defendant to yield possession
of the premises to the plaintiff within 28 days. She granted plaintiff mense
profit at the rate of $12,000 per annum for the period 1st May 2009
to date of vacation of the property and ordered defendant to pay outstanding
rent for the period 1st May 2008 to 30th April 2009 plus
interest at the prevailing bank rate from 1st May 2008 when same
became due to date of payment. The defendant finds these orders unacceptable
and is seeking a reversal of this judgment and in its place judgment given on
its counterclaim.<o:p></o:p>The defendant presented 7
grounds of appeal which we reproduce hereunder.<o:p></o:p>“1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The judgment was against the entire weight
of evidence adduced at the trial.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The trial Judge wrongly found that the
plaintiffs agreement tendered as Exhibit A was conclusive evidence of the
agreement between the parties despite the court later on finding that contrary
to the expressly stipulated provisions contained therein, the 5 year lease term
was orally negotiated and agreed to commence on 1st May,2004 and not
on 1st May 2003 as stated in Exhibit A.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The trial Judge erred by overlooking
the incontrovertible conclusion based on her earlier finding that since the 5
year lease term commenced on 1st May 2004, (and not 1st
May 2003 as stated in Exhibit A), no proper cause of action could properly have
accrued in favour of the plaintiff at the time of institution of the high Court
proceedings on 12th June 2008 for the relief of recovery of
possession claimed by the plaintiff in its writ of summons. The learned judge
fell into error by failing to dismiss the plaintiff’s action for recovery of
possession as being premature.<o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned Judge erred on a matter of
law and fact when she refused to consider the defendants’ plea for
rectification on grounds of mistake on the basis that the complaints of the
defendant did not go to the root of the agreement entered into between the
parties.<o:p></o:p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned Judge wrongly overlooked
the parole evidence led by the defendant orally, and through&nbsp; Exhibit 4 and wrongly found that the
negotiated and agreed terms contained therein were mere proposals of&nbsp; the defendant, despite the admission of
plaintiffs’ witness, PW1, that there were agreed terms&nbsp; contained in Exhibit 4.<o:p></o:p>